Los Angeles daily herald., 1887-03-26
DAILY HERALD.
CITY COUNCIL.
An Adjourned Meeting
Yesterday.
STREET RAILWAY FRANCHISES
An Opinion on the Subject ffom
the City AttOrney-Ac-
tion Deferred.

An Opinion on the Subject 1fOm
the City AttOrney-Ac-
tion Deferred.
There was an adjourned meeting OF
the Council held yesterday afternoon for
the purpose of considering street rail-
way franchises which have been in the
hands Of the Board of Public Works.
President Breed occupied the chair,
and the following members of the Coun-
oil were present: Messrs. Franksnfeld,
Gcss. Hitler, Hyans. johnson. Jones,
Kuhrts, Lowell. Perry, Stearns. Will
lard.
The Clerk read the ordinance granting
20 the Los Angeles Development Com.
many franchise to build double track
cable road from the Intersection of Grand
avenue and Seventh street to Fort street
end along Fort street to Temple. This
franchise grants the new company the
right 10 lay down new track on Fort
street in place Of theone now used by the
Central Street Railway Company from
Fourth to First street. The Central
Company shall be allowed to use the
new track of the cable road by paying
one-hslf of the cost of construction of
the track.
The Central Street Railway Company
entered vigorous protest. stating that
many years age . franchise had been
granted to tn. Spring and Sixth street
company for thsuse Of the street between
First and Fourth, which franchise had
been assigned to the Central Company.
This company alleged that to allow the
new company to tear up the track now
used by the Central Company, build q
new one and under suffsrancs allow the
Central Company to use it, would work
. great hard ship, be unwarrantable, m
Just and without the color of law. The
Central claimed that the franchise had
been granted them, they had accepted
it and complied with all the provisions
OF the contract between the city and
themselves and that any attempt to dis
turb them in the enjoyment of their
vested rights would be vioalation Of
the law. The Central Company respect
fully submitted that the Council had not
the power to disturb them.
Nj. J. G. DAILY, the talented City At.
tornsy, had been called upon some
weeks ago for an opinion on the subject
and q the result of his Investigation
submitted the following:
CITY ATTORNEYS OPINION.
TO tie Honorable Council of the City o.
Los Angeles:
GHNrLEMEN-The question referred
to ma, IL there any legal objection to
granting the franchise asked as now pre-
sented to your body for action? or may
put the question in this form: Will thu
passage Of this ordinance impair or vio
late any right heretofore vested in tn.
Central Railway Company, by the vari
Gus ordinances heretofore passed ant
now 10 force, authorizing the building.
maintaining and operating its street rail
way!
The right to authorize the construction
Of strest railways is given to your honor
able body by the provisions of title ~,
part w. section 497 Civil Code: Legis.
lative authority 10 necessary to enable 9
company or person to construct q rail
way in the streets, and the effect of suct
authority, when obtained and acteo
upon, il to give the company, or person
property in the franchise and road; anc
in the absence of legislative reservation
no rival company has the right to us'
tho track of the company which laid i
down; or without legislative authority
rival line cannot be constructed on tn,
same street. (Dillon's Municipal Corps
In this State, the legislative au
thority has made such conditions q
it thought necessary. Among 9th
ers, it permits second roa
or company to occupy the same street
the limitation being as 10 distance (fiv
block, and the condition that the trac
already laid be used by the second com
pany acquiring rights; that is, the Legis
lature reserved the right to give to
second applicant portion of the righ'
granted to fret, on compensate TO
such part. No power is reserved b
the Legislature to reconstruct or trans
pose existing rights or cause them to b,
changed to conform to the necessities o
after.applicants. When an act is au
thorized by statute affecting the right
of property the rule of strict construc
tion holds good, precision of action, an
a. no such power has been conferred OF
the Council Of Los Angeles by any 90
of the Legislature, that can find, t
authorize the action asked to be take
by the Los Angeles Development Cor
pany. the assumption Of such q powe
would confer no right.
The ordinance passed November
1876, granting to the Spring and 5ixt
Street Railway Company for the teri
of thirty years fixed the position an
right of that company to construct an
maintain railway track and the cond
tions and reservations contained in SCI
408 (Civil Code) are, was the grant cor
tanned in that and preceding ordinance
and their acceptance by the company
the nature of q contract between th
cltv of Los Angeles and the street raj
vav company and has the railway con
nsnv complied with it's provisions an
undertaking to the city? If so, any az
ON the part of the city, or Of the Lsgis
lsture Of the State, by which the right
and franchises conferred are in any mar
ner naterially interfered with, (excep
as in the ordinance provided) to tn
damage of the company, is violatio
of the provisions of that contract an
under the constitution of the State an,
the United States is null and void.
Article l, Section 10, Constitution o
the United States, says: mo Stat
shall pass any law impairing the obliga
tios of contract" II we oonstrue it t.
be : grant and accepted by the grantee
il is to be regarded as an executed con
tract. If it be . contract, and its con